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Scottish Court of Session Decisions >>
Helen Ferguson v Durham of Lufnes. [1699] 4 Brn 438 (10 February 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Brn040438-0865.html Cite as:
[1699] 4 Brn 438
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Helen Ferguson v. Durham of Lufnes
Date: 10 February 1699
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Helen Ferguson pursues Durham of Lufnes for spuilyie and ejection, by seizing on her goods and corns, and thrusting herself and family out of the houses. Alleged,—George Hogg, her husband, having been his tenant, and dying much in his debt, the said Helen, his relict, gave bond for £2200 as the arrears, and a full disposition to her goods and gear for his better security, authorising him to enter into possession without hazard of spuilyie; et quœvis causa excusat a delicto. answered,—The disposition can never defend, for nemo debet sibi jus dicere, ne majoris tumultus occasio detur; but his entry should have been authore prœtor, by a warrant from the Sheriff. 2do. The disposition relates to an inventory, and yet he meddled per universitatem with the whole. 3tio. He intromitted before the term of payment of the bond; which was most unwarrantable. Replied,—He needed no other warrant than what was contained in the disposition, her possession being merely precarious, and which he might recal at any time. To the second, The mentioning an inventory was not restrictive, but demonstrative of his right to all per aversionem, aye and while he was paid. And, as to the third, He behoved to secure her goods; because he offers to prove she was absconding herself and embezzling her goods, conveying them privately away under night; and therefore he employed people to cut down the corns, and required her, by way of instrument, to come and oversee the same, and to name some honest neighbours to appreciate them.
The Lords thought Lufnes had been too precipitant in meddling, before the term of payment, without applying to a judge, or at least holding a baron-court, and leading probation anent her embezzlements, whereon he might have arrested her goods and corns: and remembered, that, in Bruce of Bordie's pursuit against Keirie of Gogar, the Lords found a disposition to the crop and goods purged a spuilyie; yet the intromission was so far found unwarrantable that they modified the corns at the highest prices: Therefore, in this case, the Lords allowed a mutual probation as to her withdrawing herself and abstracting her goods, and as to what the roum would sow, and what was the extent of the product, and if he used any poinding, before they would determine whether she should have her oath in litem, or if he shall be only countable for his super-intromission above his own payment.
